GENERAL TERMS AND CONDITIONS OF BUSINESS
of Dr.Clauder solutions for pets GmbH (Dr.Clauder)
- The following General Terms and Conditions of Business (GTC) shall apply exclusively upon conclusion of the contract. Deviating or supplementing terms and conditions of the contract partner shall only become an integral part of the contract if these are submitted to Dr Clauder with an order, and Dr.Clauder does not object to the GTC of the partner.
- These GTC shall also apply to all future contracts of purchase with the contract partner.
- These GTC shall apply only with respect to companies, juridical persons under public law and public-law special funds as defined in Section 310 Subsection 1 BGB (German Civil Code).
Section 2 – Conclusion of contract, content of performance, written form
- Order forms signed by the contract partner are to be understood as an offer by the contract partner, unless it is recognisable in individual cases, for example through signature by both parties, that immediate conclusion of contract has been agreed. In the case of business transactions in Germany, Dr.Clauder can accept such an offer within two weeks, in the case of business transactions involving other countries within four weeks.
- The performance content owed shall result finally from the written order confirmation from Dr.Clauder or, in the event of immediate conclusion of contract (Number 1), from the respective purchase slip.
- Delivery and sale shall be in the name of and for the account of Dr.Clauder.
- All agreements as well as any retrospective supplementing or deviating additional agreements will only be effective if made in writing. The same shall apply to cancellation of the requirement of the written form.
Section 3 – Payment terms, offsetting, right of retention
- Based on the respectively valid pricelist, all information provided by Dr.Clauder shall apply as net prices, excluding delivery and transport costs incurred and plus value added tax at the respectively applicable statutory rate.
- All payments to Dr.Clauder are due immediately and without deduction upon delivery. Periods for payment shown on invoices shall not apply as a ruling on the due date. Dr.Clauder is entitled to demand interest of 8% above the respective base rate of interest as from the due date.
- In the event of default on payment, Dr.Clauder reserves the right to assert farther-reaching damages. Default on payment shall apply in particular if the contract partner does not pay within the period for payment. The immediate calling due shall render a payment reminder from Dr.Clauder unnecessary. Based on the immediate due date for payment, Dr.Clauder shall be entitled to demand not only the interest after the due date in the event of exceeding of the period for payment, but also default interest as well as to invoice administration costs of 10.00 euros per payment reminder.
- Employees or other persons authorised by Dr.Clauder are entitled to collect payments against presentation of corresponding evidence.
- Dr.Clauder is entitled to refuse all performances for which it is responsible under the business relationship, or to provide such exclusively against advance payment, for as long as the contract partner is in default on its payment obligations.
- The contract partner is only entitled to offset or retain if its counterclaim is undisputed or has been established by declaratory judgment.
Section 4 – Deliveries, deadlines, default by Dr.Clauder, impossibility, objection of uncertainty
- Deliveries shall be made ex-works, i.e. at the expense and risk of the contract partner.
- Dr.Clauder is entitled to make partial deliveries and partial performance. Possible claims of the contract partner based on disruption of performance shall remain unaffected.
- The time of delivery and performance can be seen in the order confirmation from Dr.Clauder or, in cases of immediate conclusion of contract (Section 2 Number 2, from the respective purchase slip. In the absence of any agreement to the contrary, the delivery dates stated shall apply as “approximate dates” respectively. The final dates shall be advised by Dr.Clauder with an appropriate period of advance notice.
- All performance obligations of Dr.Clauder are subject to the reserve of correct and on-time delivery to Dr.Clauder. In the event of excusable late and incorrect delivery to it as well as in cases of other hindrances for which it is not responsible, for example strike, lockout, war, import and export bans, lack of energy and raw materials as well as official measures, Dr.Clauder shall be entitled to delay the delivery or performance – without falling into default – by the duration of the hindrance caused by this and within three weeks of lapsing of the hindrance for which it is not responsible.
- If delivery is impossible for Dr.Clauder, the contract party shall be entitled to demand damages in accordance with the statutory provisions. Nevertheless, the claim of the contract partner to damages in addition to or instead of performance, and to reimbursement of futile expense, shall be limited to 10% of the value of that part of the delivery that cannot be used as a result of the impossibility. Farther-reaching claims of the contract partner based on impossibility of delivery are excluded. This limitation shall not apply in cases of liability based on intentional conduct, gross negligence or as a result of injury to life, limb or health. The right of the contract partner under Section 7 of the GTC shall remain unaffected.
- If Dr.Clauder is obliged to provide advance performance, performance can be refused – without the occurrence of default – if, following conclusion of the contract, circumstances become recognisable that permit the conclusion that the contract partner will not be able to fulfil its counter-performance, in particular its payment obligation. In such cases, Dr.Clauder shall be entitled to set an appropriate deadline by which the contract partner is required to pay or provide collateral, step-by-step against provision of the performance. Following unsuccessful expiry of the deadline, Dr.Clauder can withdraw from the contract and demand compensation for the damage suffered or for the futile expense.
- In the event of a delay in performance for which Dr.Clauder is responsible, the contract partner shall be entitled to withdraw from the contract following the setting of an appropriate deadline and unsuccessful passing of this deadline. Section 6 shall apply as regards claims for damages against Dr.Clauder based on delayed performance or non-fulfilment.
Section 5 – Warranty
- The contract partner must examine the goods immediately following their delivery by Dr.Clauder, in so far as this is possible in the ordinary course of business, and must report clearly recognisable defects in writing immediately upon discovery in order to maintain the warranty rights. Reference is made to Section 377 HGB (German Commercial Code).
- The warranty for newly produced items is 1 year from delivery. The expiry dates of the “use by” information shall not be affected by this.
- If a hidden defect becomes recognisable within the warranty period, Dr.Clauder can provide replacement delivery or rectify the defect within an appropriate period at its discretion. If the replacement delivery or rectification within the appropriate period fails or if it is unreasonable, the contract partner shall be entitled to reduce the selling price or to withdraw from the contract.
Section 6 – Liability of Dr.Clauder
- Liability of Dr.Clauder, its executive bodies, employees and vicarious agents – irrespective of the legal grounds –applies only if the damage
- has been caused by culpable violation of an essential contractual obligation (cardinal obligation) in a manner endangering achievement of the purpose of the contract, or
- is attributable to gross negligence or intent.
- In other respects, liability for damages – irrespective of the legal grounds – is excluded.
- If Dr.Clauder is liable under Number 1a) for the violation of an essential contractual obligation, without gross negligence or intent applying, liability shall be limited to the scope of damage with whose occurrence Dr.Clauder must typically have reckoned at the time of conclusion of the contract on the basis of the circumstances known to it at that time.
- Dr.Clauder shall not be liable for indirect damage, consequential damage of defects and loss of profits.
- The above limitations or exclusions of liability shall not apply in cases of culpable injury to life, limb or health, as regards exclusions of liability under the Product Liability Act as well as in cases of a contractually agreed, fault-independent obligation to accept responsibility.
Section 7 – Withdrawal by the contract partner
- In the event of violations of obligations, the contract partner shall be required to declare to Dr.Clauder, within two weeks of a request, whether it will withdraw from the contract as a result of the violation of obligations or insist on the delivery.
- If the violation of obligations for which Dr.Clauder is responsible concerns a partial performance, the contract partner can, in cases of default, defective performance and impossibility, only withdraw from the entire contract if the remaining performance is not of interest to it. In the event of justifiable defective performance, withdrawal is not possible if the violation of obligations, in particular a defect, is immaterial. A defect is immaterial not only in cases of merely immaterial deviation from the agreed quality, but also in cases of merely immaterial impairment of usability.
- The right of withdrawal is excluded if the contract partner is by far predominantly responsible for the default, defective performance or impossibility, and, in cases of violation of an accessory obligation, is limited to cases in which the contract partner can no longer be reasonably expected to continue with the contract.
- The right of the contract partner to withdraw in the event of partial impossibility for which neither party is responsible in accordance with Number 2 Sentence 1, shall remain unaffected.
Section 8 – Retention of title
- Dr.Clauder shall reserve title to the goods delivered up until such time as full payment has been received for all current or future claims under the business relationship between it and the contract partner.
- The contract partner is not permitted to pledge the item purchased or to transfer ownership of it by way of security. It is however entitled to make onward sale of the item purchased in the ordinary course of business, subject to the proviso that the claim from the onward sale shall pass to us as follows: the contract partner hereby assigns to us henceforth all claims – together with all ancillary rights – to which it is entitled against customers or third parties from the onward sale, and indeed irrespective of whether the item purchased is sold on without or following processing.
- The contract partner is obliged to treat the goods, covered by our retention of title, with care. This includes in particular insuring these, at its own expense and at the value of the property, against theft, damage and destruction. The contract partner hereby assigns to Dr.Clauder henceforth all claims under the insurance policy. Dr.Clauder is entitled to demand the presentation of evidence of the existence of the insurance cover.
- The contract partner must inform us immediately and in writing in the event of attachments or other intervention by third parties, so that we can file legal action in accordance with Section 771 ZPO (Code of Civil Procedure). In the event of attachments or other objections by third parties, the contract partner must immediately forward the attachment report to us as well as the affidavit concerning the identity of the item attached. The contract partner is also obliged to object immediately in all cases of attachment or seizure and to make reference to our rights. Failure to do so shall render the contract partner liable to damages with respect to us.
- The contract partner can demand the release of collateral if the recoverable value of the collateral exceeds the claims still outstanding by more than 20%. Dr.Clauder is entitled to choose which collateral to release.
Section 9 – Disposal of packaging via an industry solution (Section 6 Subsection 2 VerpackV (Packing Regulation))
- The customer hereby confirms that – as a point of occurrence equivalent to private households in accordance with Section 3 Subsection 11 Sentence 2 and 3 VerpackV – it will join and participate in the industry solution, set up on our instructions with regard to all sales packaging delivered by us as from 01.01.2015 and incurred by it.
- Number 9.1 shall not apply if and in so far as the customer actively objects to participation in the industry solution.
Section 10 – Confidentiality
The contract partner undertakes to maintain indefinite secrecy concerning all information and data that becomes accessible to it within the scope of the business relationship and which is marked as confidential, or which is recognisable as confidential, in particular as business or company secrets, on the basis of other circumstances, and – in so far as not required for achievement of the purpose of the contract – not to record such, forward it to third parties or use it in any way. Corresponding obligations must be imposed on employees as well as third parties involved.
Section 11 – Other provisions
Place of jurisdiction for all disputes arising from the business relationship is the Local Court Duisburg. The contractual relationships between Dr.Clauder and the contract partner shall be governed exclusively by the law of the Federal Republic of Germany.
Last amended Mai 2018